J-E02003-21
2022 PA Super 35
MICHAEL CALISTO, : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : : v. : : : MICHAEL RODGERS : No. 2834 EDA 2018
Appeal from the Judgment Entered November 2, 2018 In the Court of Common Pleas of Philadelphia County Civil Division at No(s): 160801903
BEFORE: PANELLA, P.J., BENDER, P.J.E., BOWES, J., LAZARUS, J., OLSON, J., DUBOW, J., KUNSELMAN, J., MURRAY, J., and McCAFFERY, J.
CONCURRING OPINON BY BOWES, J.: FILED FEBRUARY 25, 2022
I fully agree with the Majority’s determination that none of the issues
raised by Michael Calisto (“Seller”) is cause for us to disturb the trial court’s
finding that he failed to prove his claims against Michael Rodgers (“Buyer”). I
write separately to emphasize that the existence of valid deeds conveying the
properties to Seller was not necessary to establish that Buyer no longer held
title to those properties, and that the deeds Seller signed on behalf of his
deceased mother are not the only writings in evidence that were sufficient to
satisfy the statute of frauds and defeat his claim for quiet title.
I begin by examining evidence that was before the trial court which was
not discussed in the Majority Opinion. Buyer testified that he was in the
business of flipping houses and was approached by an intermediary about
purchasing some properties in Philadelphia. See N.T. Trial, 3/27/18, at 23, J-E02003-21
34-35. After inspecting the properties, Buyer informed Seller that he was
interested in buying them at a suitably low price, given their poor condition.
Id. at 37, 47-49. Buyer met with Seller again the next day, at which time
Seller offered to sell the three properties for $250,000 in cash. Id. at 48-50.
Buyer countered at $150,000, and Seller immediately accepted. Id. at 50.
Seller represented to Buyer that there were others interested in the real
estate, so Buyer needed to act fast and put $10,000 cash down to show that
he was serious. Id. at 50-51.
Buyer testified that he gave Seller $10,000 in cash the next day. N.T.
Trial, 3/27/18, at 51. In exchange, Seller provided a written purchase
agreement memorializing that Buyer had agreed to purchase 647 North 16th
Street, 651 North 16th Street, and 424 North 32nd Street, owned by Joan
Calisto, for a total of $150,000 cash, and that the down payment of $10,000
cash would be applied toward the purchase price. See Plaintiff’s Exhibit 4 at
1. The agreement specified that the properties were dilapidated, were being
sold as-is, and that Buyer would assume all liens on the properties. Id. at 2.
The writing further indicated with an “X” that Buyer accepted the offer, and
the seller’s assent was noted with the initials “J.C.” Id. Seller signed it on
behalf of “Prime Real Estate, LLC,” which is listed as the “selling company.” 1
Id. at 3; N.T. Trial, 3/27/18, at 165. Seller avowed that Prime Real Estate
____________________________________________
1 The signature is illegible. See Plaintiff’s Exhibit 4 at 3.
-2- J-E02003-21
was his company, and that he had the legal authority to execute the sale of
the real estate “because his mother gave him the property.” N.T. Trial,
3/27/18, at 158-59. See also id. at 60 (Buyer testifying that Seller stated
that he owned the properties “by way of his mother”). Thereafter, Buyer
supplied the remaining purchase price in cash, at Seller’s insistence, and Seller
provided the deeds discussed in the Majority Opinion.
After Buyer began rehabilitating the properties, Seller filed the instant
action claiming that he, not Buyer, was the lawful owner of the three
townhouses bequeathed to him by his mother, Joan Calisto. See Amended
Complaint, 1/24/17, at ¶¶ 16, 20. The trial court ruled to the contrary. In
arguing that the statute of frauds entitles him to relief from this Court, Seller
solely focuses on the deeds that Joan Calisto could not have signed after her
death. See Seller’s Amended Brief at 31-32. In so doing, Seller
misapprehends the importance of the deeds and the application of the statute
of frauds.
The statute of frauds “prevent[s] the enforcement of unfounded
fraudulent claims by requiring that contracts pertaining to interests in real
estate be supported by written evidence.” Strausser v. PRAMCO, III, 944
A.2d 761, 765 (Pa.Super. 2008) (internal quotation marks omitted). A writing
need not be so formal as a deed to fulfill the requirements of the statute of
frauds. Instead, a court “should always be satisfied with some note or
memorandum that is adequate to convince the court that there is no serious
-3- J-E02003-21
possibility of consummating fraud by enforcement.” In re Beeruk's Estate,
241 A.2d 755, 758 (Pa. 1968) (cleaned up). This Court has noted that the
writing necessary to satisfy the statute “need only contain a sufficient
statement of the terms of the agreement and the signature of the grantor.”
In re Estate of Dotterrer, 579 A.2d 952, 954 (Pa.Super. 1990). Similarly,
“there is no requirement in the Statute or the decisional law that a signature
be in any particular form.” Hessenthaler v. Farzin, 564 A.2d 990, 993
(Pa.Super. 1989).
Instead, the focus has been on whether there is some reliable indication that the person to be charged with performing under the writing intended to authenticate it. Thus, for example, the Restatement (Second) of Contracts provides that:
The signature to a memorandum may be any symbol made or adopted with an intention, actual or apparent, to authenticate the writing as that of the signer.
Id. (emphasis in original) (quoting Restatement of Contracts § 134).
Hence, the statute of frauds does not require the existence of a writing
which in and of itself constitutes an enforceable contract for the sale of land,
let alone a deed which effectuated transfer of title. All that the statute requires
is that some signed writing supports the existence of an agreement for the
sale of real estate. See, e.g., Beeruk's Estate, supra at 758.
From these facts detailed above, which were credited by the trial court,
Seller’s statute-of-frauds arguments fail based upon the purchase agreement
alone. This document not only listed the properties by address, identified
-4- J-E02003-21
Seller’s mother as the owner, and stated the purchase price and the down
payment, but it also was signed by Seller, albeit on behalf of a fictitious selling
company. As such, the purchase agreement was sufficient to satisfy the
statute of frauds and establish that Seller contracted with Buyer to transfer
ownership of the properties.
Therefore, Seller was no longer the lawful owner of the properties at the
time he filed the instant action. From the moment Seller entered into the
contract to sell the properties to Buyer, Seller retained only a security interest
in them until such time that Buyer fulfilled his part of the bargain by paying
the purchase price. See Commonwealth v. Inv. Res. Holding, Inc., 168
A.3d 225, 229 (Pa.Super. 2017) (“It is well-established law here that when
the Agreement of Sale is signed, the purchaser becomes the equitable or
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J-E02003-21
2022 PA Super 35
MICHAEL CALISTO, : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : : v. : : : MICHAEL RODGERS : No. 2834 EDA 2018
Appeal from the Judgment Entered November 2, 2018 In the Court of Common Pleas of Philadelphia County Civil Division at No(s): 160801903
BEFORE: PANELLA, P.J., BENDER, P.J.E., BOWES, J., LAZARUS, J., OLSON, J., DUBOW, J., KUNSELMAN, J., MURRAY, J., and McCAFFERY, J.
CONCURRING OPINON BY BOWES, J.: FILED FEBRUARY 25, 2022
I fully agree with the Majority’s determination that none of the issues
raised by Michael Calisto (“Seller”) is cause for us to disturb the trial court’s
finding that he failed to prove his claims against Michael Rodgers (“Buyer”). I
write separately to emphasize that the existence of valid deeds conveying the
properties to Seller was not necessary to establish that Buyer no longer held
title to those properties, and that the deeds Seller signed on behalf of his
deceased mother are not the only writings in evidence that were sufficient to
satisfy the statute of frauds and defeat his claim for quiet title.
I begin by examining evidence that was before the trial court which was
not discussed in the Majority Opinion. Buyer testified that he was in the
business of flipping houses and was approached by an intermediary about
purchasing some properties in Philadelphia. See N.T. Trial, 3/27/18, at 23, J-E02003-21
34-35. After inspecting the properties, Buyer informed Seller that he was
interested in buying them at a suitably low price, given their poor condition.
Id. at 37, 47-49. Buyer met with Seller again the next day, at which time
Seller offered to sell the three properties for $250,000 in cash. Id. at 48-50.
Buyer countered at $150,000, and Seller immediately accepted. Id. at 50.
Seller represented to Buyer that there were others interested in the real
estate, so Buyer needed to act fast and put $10,000 cash down to show that
he was serious. Id. at 50-51.
Buyer testified that he gave Seller $10,000 in cash the next day. N.T.
Trial, 3/27/18, at 51. In exchange, Seller provided a written purchase
agreement memorializing that Buyer had agreed to purchase 647 North 16th
Street, 651 North 16th Street, and 424 North 32nd Street, owned by Joan
Calisto, for a total of $150,000 cash, and that the down payment of $10,000
cash would be applied toward the purchase price. See Plaintiff’s Exhibit 4 at
1. The agreement specified that the properties were dilapidated, were being
sold as-is, and that Buyer would assume all liens on the properties. Id. at 2.
The writing further indicated with an “X” that Buyer accepted the offer, and
the seller’s assent was noted with the initials “J.C.” Id. Seller signed it on
behalf of “Prime Real Estate, LLC,” which is listed as the “selling company.” 1
Id. at 3; N.T. Trial, 3/27/18, at 165. Seller avowed that Prime Real Estate
____________________________________________
1 The signature is illegible. See Plaintiff’s Exhibit 4 at 3.
-2- J-E02003-21
was his company, and that he had the legal authority to execute the sale of
the real estate “because his mother gave him the property.” N.T. Trial,
3/27/18, at 158-59. See also id. at 60 (Buyer testifying that Seller stated
that he owned the properties “by way of his mother”). Thereafter, Buyer
supplied the remaining purchase price in cash, at Seller’s insistence, and Seller
provided the deeds discussed in the Majority Opinion.
After Buyer began rehabilitating the properties, Seller filed the instant
action claiming that he, not Buyer, was the lawful owner of the three
townhouses bequeathed to him by his mother, Joan Calisto. See Amended
Complaint, 1/24/17, at ¶¶ 16, 20. The trial court ruled to the contrary. In
arguing that the statute of frauds entitles him to relief from this Court, Seller
solely focuses on the deeds that Joan Calisto could not have signed after her
death. See Seller’s Amended Brief at 31-32. In so doing, Seller
misapprehends the importance of the deeds and the application of the statute
of frauds.
The statute of frauds “prevent[s] the enforcement of unfounded
fraudulent claims by requiring that contracts pertaining to interests in real
estate be supported by written evidence.” Strausser v. PRAMCO, III, 944
A.2d 761, 765 (Pa.Super. 2008) (internal quotation marks omitted). A writing
need not be so formal as a deed to fulfill the requirements of the statute of
frauds. Instead, a court “should always be satisfied with some note or
memorandum that is adequate to convince the court that there is no serious
-3- J-E02003-21
possibility of consummating fraud by enforcement.” In re Beeruk's Estate,
241 A.2d 755, 758 (Pa. 1968) (cleaned up). This Court has noted that the
writing necessary to satisfy the statute “need only contain a sufficient
statement of the terms of the agreement and the signature of the grantor.”
In re Estate of Dotterrer, 579 A.2d 952, 954 (Pa.Super. 1990). Similarly,
“there is no requirement in the Statute or the decisional law that a signature
be in any particular form.” Hessenthaler v. Farzin, 564 A.2d 990, 993
(Pa.Super. 1989).
Instead, the focus has been on whether there is some reliable indication that the person to be charged with performing under the writing intended to authenticate it. Thus, for example, the Restatement (Second) of Contracts provides that:
The signature to a memorandum may be any symbol made or adopted with an intention, actual or apparent, to authenticate the writing as that of the signer.
Id. (emphasis in original) (quoting Restatement of Contracts § 134).
Hence, the statute of frauds does not require the existence of a writing
which in and of itself constitutes an enforceable contract for the sale of land,
let alone a deed which effectuated transfer of title. All that the statute requires
is that some signed writing supports the existence of an agreement for the
sale of real estate. See, e.g., Beeruk's Estate, supra at 758.
From these facts detailed above, which were credited by the trial court,
Seller’s statute-of-frauds arguments fail based upon the purchase agreement
alone. This document not only listed the properties by address, identified
-4- J-E02003-21
Seller’s mother as the owner, and stated the purchase price and the down
payment, but it also was signed by Seller, albeit on behalf of a fictitious selling
company. As such, the purchase agreement was sufficient to satisfy the
statute of frauds and establish that Seller contracted with Buyer to transfer
ownership of the properties.
Therefore, Seller was no longer the lawful owner of the properties at the
time he filed the instant action. From the moment Seller entered into the
contract to sell the properties to Buyer, Seller retained only a security interest
in them until such time that Buyer fulfilled his part of the bargain by paying
the purchase price. See Commonwealth v. Inv. Res. Holding, Inc., 168
A.3d 225, 229 (Pa.Super. 2017) (“It is well-established law here that when
the Agreement of Sale is signed, the purchaser becomes the equitable or
beneficial owner through the doctrine of equitable conversion. The vendor
retains merely a security interest for the payment of the unpaid purchase
money.”) (cleaned up)). See also Plauchak v. Boling, 653 A.2d 671, 674
(Pa.Super. 1995) (noting that an “equitable owner under contract for sale . . .
may maintain suit to quiet title”). Buyer paid the remainder of the purchase
money to Seller long before the trial court adjudicated Seller’s quiet title claim.
See N.T. Trial, 3/27/18, at 16-19, 58 (testimony indicating Buyer paid the
remainder of the purchase price to Seller in cash in July 2016).
Therefore, even if Seller never delivered valid deeds to Buyer, the
statute of frauds does not serve as a basis for this Court to disturb the trial
-5- J-E02003-21
court’s verdict. See, e.g., Woodhouse Hunting Club, Inc. v. Hoyt, 183
A.3d 453, 457 (Pa.Super. 2018) (“The plaintiff bringing a quiet title action has
the burden of proof and must recover on the strength of its own title.”). I
would reject Sellers arguments concerning the statute of frauds on this basis.
I join the Majority’s resolution of Seller’s other claims of error.
Judges Olson, Dubow and Murray join this Concurring Opinion.
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